The  Claim  of  William  McGarrahan,  alias  The  Panoche 
Grande  Quicksilver  Mining  Company  of  New 
York,  vs.  The  United  States. 

- .  ♦ - - 


SPEECH 


OF 


OF  INDIANA, 

In  the  Eonse  of  Kepresentatives,  February  18, 1871, 


The  House  haring  under  consideration  the  report  of  the  Committee  on  the  Judiciary 
on  the  memorial  of  William  McGarrahan — 

Mr.  KERR  said  :  During  the  last  Congress,  when  this  case  was  under 
consideration,  as  has  been  stated  by  the  gentleman  from  Kentucky,  [Mr. 
Beck, |  I,  together  with  most  other  gentlemen  on  this  side  of  the  H,ouse, 
voted  for  the  resolution  then  reported  in  favor  of  McGarrahan.  I  did  it,  as 
other  gentlemen  did,  without  investigation,  following  the  recommendation 
and  action  of  the  committee  at  that  time,  of  which  I  was  not  a  member.  It 
is  the  practice  of  members  upon  all  questions  of  this  kind,  involving  labo¬ 
rious  and  intricate  examinations  of  law  and  facts,  to  follow  the  recommen¬ 
dations  and  decisions  of  the  regularly  accredited  organs  of  the  House.  Ne¬ 
cessity  oftentimes  compels  us  so  to  act  for  lack  of  time  or  strength  to  make 
individual  inquiries  ;  but  when  it  came  to  be  a  part  of  my  duty  to  investi¬ 
gate  the  case  judicially  as  a  member  of  the  committee  in  this  Congress,  I 
proceeded  to  divest  myself  of  any  opinion  which  during  the  last  Congress  I 
might  have  formed  or  expressed  upon  it,  and  to  decide  it  for  myself  and 
upon  my  responsibility  after  the  most  laborious  and.  painful  examina¬ 
tion,  as  a  question  for  the  most  conscientious,  impartial,  and  exact  judicial 
determination.  And  it  is  in  pursuance  of  the  conclusion  reached  by  me  after 
that  examination  that  I  stand  here  to-day  to  support  the  report  and  the  re¬ 
commendations  now  made  by  the  majority  of  the  committee.  This  contro¬ 
versy  is  in  many  respects  very  extraordinary,  and  it  is  well  calculated  to 
confuse  and  distract  any  mind  that  will  not  impose  upon  itself  the  labor  of  a 
careful  and  full  examination  ;  but  when  this  is  done  it  becomes  clear,  and 
resolvable  into  a  few  questions  not  difficult  to  decide. 


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T  hope,  Mr.  Speaker,  that  this  honorable  House  will  hear  me  while  I 
give,  briefly  as  I  must,  the  reasons  which  have  controlled  me  in  arriving  at 
my  decision,  and  in  the  vote  which  I  shall  now  give  against  the  claim  of* 
McGarrahan.  I  say,  Mr.  Speaker,  against  the  claim  of  McGfarrahan.  [  flo 
not  mean  to  admit  that  McGarrahan  has  any  claim  here  in  his  own  right.  Gen¬ 
tlemen  have  tried  to  impose  upon  this  House  a  common  dodge,  known  in  courts 
of  justice  and  before  juries  as  the  “  sympathy  dodge,”  in  behalf  of  McGarra¬ 
han.  I  desire  at  the  outset  to  disabuse  the  mind  of  the  House  as  to  that, 
and  to  show  that  McGarralian’s  interest  in  this  claim  now  is  that  of  a  mere 
figure-head,  of  a  mere  agent,  instrument,  and  tool  in  the  hands  of  other 
parties,  who  stand  behind  him  and  fill  his  hands  and  his  pockets  with 
money  that  he  may  come  here  and  live  year  after  year  and  in  their  behalf 
prosecute  this  rotten  claim,  having  in  it  himself  the  most  inconsiderable 
interest.  At  his  back  stands  a  powerful  combination  of  adventure! s  and 
speculators,  who  have  been  duly  incorporated. 

Tracing  the  various  conveyances  in  the  history  of  this  Panoche  Grande 
claim,  I  find  that  December  22,  1857,  was  the  date  of  Gomez’s  deed  to 
McGarrahan  for  an  undivided  one-lialf  of  Panoche  Grande.  And  remem¬ 
ber  that  that  was  before  there  was  any  decision  in  his  favor  by  any  tribunal, 
good  or  bad,  high  or  low,  in  the  country.  At  the  time  of  his  purchase 
Pacificus  Old  claimed  to  be  the  owner  of  the  other  half  of  the  land  in 
question,  and  to  hold  it  by  an  unrecorded  and  secret  and  dishonest  deed 
from  Gomez.  Neither  Ord  nor  McGarrahan  was  ever  in  possession  of  an 
acre  of  the  land,  and  both  bought  with  their  eyes  open,  with  knowledge  of 
the  rottenness  of  the  claim,  and  with  intent  and  purpose  thereafter  to  make 
it  good  by  hook  or  crook,  by  fair  means  or  foul. 

Here,  diverging  for  the  moment  somewhat  from  the  line  of  my  argument, 
I  may  as  well  state  the  fact  that  in  Gomez’s  deed  to  McGarrahan  it  was  ex¬ 
pressly  declared  and  recited  that  one  half  of  the  land  or  claim  had  been 
before  that  time  sold  to  Pacificus  Ord,  under  a  contract  between  Gomez  and 
Ord,  Ord  being  at  the  time  Gomez’s  attorney  in  the  prosecution  of  the  claim 
before  the  Mexican  commission.  And  Ord  is  the  faithless  and  dishonest 
United  States  attorney  out  of  whose  rascality  and  complicity  in  fraud  all 
this  trouble  has  arisen.  He  is  the  man  by  reason  of  whose  corrupt  betrayal 
of  the  Government  Gomez  or  McGarrahan  was  enabled  to  obtain  a  mere 
foothold  on  which  to  erect  this  superstructure  of  villainy. 

Now,  how  does  McGarrahan  stand  here?  Does  he  come  before  this  tri¬ 
bunal  with  clean  hands  ?  Does  he  come  here  as  an  innocent  purchaser  ? 
Is  he  entitled  to  protection  in  this  House  or  in  any  court  of  the  country 
upon  the  ground  that  he  is  an  innocent  purchaser,  without  notice  of  fraud 
and  for  a  valuable  consideration  ?  Why,  sir,  it  is  well  understood  by  all 
lawyers  that  the  law  imputes  to  any  subsequent  purchaser  a  knowledge  of 
all  facts  relating  to  the  same  land,  appearing  at  the  time  of  his  purchase, 
upon  the  muniments  of  title  which  it  was  necessary  for  him  to  inspect  in 
order  to  ascertain  the  sufficiency  of  such  title. 

Judged  by  this  rule  of  law  McGarrahan  bought  nothing.  He  knew  there 
was  no  possession  in  Gomez.  He  knew  Gomez  had  no  warrant,  no  patent, 
no  legal  title.  He  knew  the  Government  was  the  owner  of  this  land  under 
the  treaty  of  Guadalupe  Hidalgo.  It  was  only  claimed  by  Gomez.  The 
latter  was  therefore  attempting  to  sell  a  mere  inchoate  and  undecided  claim, 
and  the  law  does  not  look  with  favor  on  any  such  sales.  It,  too,  was  made 


3 


pending  litigation,  and  is  therefore  denounced  by  the  law  as  litigious, 
champertous,  immoral,  and  against  public  policy.  The  civil  law  forbids  a 
thing  which  is  litigious  to  be  alienated.  McGarrahan,  therefore,  is  in  every 
view  chargeable  with  notice,  he  bought  for  better  or  for  worse,  purchased 
only  a  chance,  a  game  partly  played,  and  at  once  proceeded,  with  the  faith¬ 
less  and  corrupt  official  Ord,  to  play  his  little  game  out  against  the  people  of 
the  United  States.  He  does  not  come  into  court  with  clean  hands.  It 
is  to  me  matter  of  profound  surprise  that  in  the  last  Congress  these  most 
important  and  material  facts  were  not  brought  to  the  knowledge  of  the 
House. 

They  not  only  cast  suspicion  and  reproach  upon  his  entire  case,  but  sub¬ 
ject  it  to  all  equities  acquired  before  or  after  his  pretended  purchase,  and 
leave  him  under  the  ban  and  condemnation  of  the  law,  which  says  that 
contracts  of  that  kind  are  immoral — they  cannot  be  sustained  by  courts  of 
justice  ;  and  this  one,  therefore,  ought  not  to  be  sustained  here. 

Now,  then,  on  the  29th  day  of  May,  1862,  Pacificus  Ord  appointed  Mc¬ 
Garrahan  his  true  and  lawful  attorney,  to  sell,  without  warranty,  all  his 
right,  title,  and  interest  in  the  claim  to  eight  twenty-fourths  of  this  Panoche 
Grande  grant.  But  Ord  at  that  time  held  twelve  twenty-fourths,  and  there¬ 
fore  he  reserved  from  this  sale  one-sixtli  of  the  entire  title  to  this  land  ;  and 
that  he  has  never  parted  with,  so  far  as  this  record  shows. 

Now,  what  did  McGarrahan  do  under  this  power  from  Pacilicus  Ord  as  to 
the  eight  twenty-fourths  of  this  title  and  as  to  his  own  title  to  one-half? 
In  pursuance  of  the  power  given  him,  McGarrahan,  on  the  17th  of  June,  in 
the  same  year,  conveyed,  without  warranty,  eight  twenty-fourths  of  the 
alleged  grant  to  “  the  Panoche  Grande  Quicksilver  Mining  Company,  a 
corporation  duly  organized  under  the  laws  of  the  State  of  New  York,”  in 
consideration  of  the  sum  of  one  dollar.  On  the  3d  day  of  February,  1865, 
McGarrahan  conveyed  the  whole  tract,  as  containing  four  square  leagues, 
to  the  same  corporation,  in  the  city  of  New  York,  in  consideration  of  the 
sum  of  $10,000,  and  again  without  warranty,  showing  all  along  that 
this  thing  was  a  mere  speculative  claim ;  that  it  was  a  mere  kite  that  these 
men  are  flying  in  the  face  of  the  country,  the  courts  of  justice,  and  of  Con¬ 
gress. 

Passing  over  some  intervening  titles,  which  are  unnecessary  to  be  men¬ 
tioned  here,  I  remark  again  that  the  Panoche  Grande  Quicksilver  Mining 
Company  of  the  city  of  New  York  conveyed  back  all  of  this  property,  by 
a  deed  bearing  date  November  1,  1866,  to  McGarrahan,  upon  the  consider¬ 
ation  of  one  dollar  without  warranty.  But  why  did  they  convey  it  back  to 
McGarrahan  ?  What  had  intervened  before  the  Panoche  Grande  Quick¬ 
silver  Mining  Company  reconveyed  it  to  McGarrahan?  Why,  this :  the 
Supreme  Court  of  the  United  States,  in  two  solemn  decisions,  had  adjudged 
that  there  was  no  merit  in  this  claim  of  McGarrahan  ;  that  he  had  no  title 
whatever,  and  therefore  all  that  he  had  conveyed  to  the  Panoche  Grande 
Quicksilver  Mining  Company  in  New  York  was  worthless  to  them  ;  and 
then  they  discovered  that  they  must  come  here  and  organize  this  raid  against 
the  Congress  of  the  United  States  ;  and  they  came  here  disguised  in  the 
person  of  McGarrahan,  this  poor,  solitary,  undefended  Irishman.  They 
took  good  care  to  send  him  here  to  influence  this  House  with  his  pockets 
full  of  money,  furnished  him  by  the  Panoche  Grande  Quicksilver  Mining- 
Company  of  New  York,  to  enable  him  to  employ  counsel  to  advocate  his 


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claims,  not  only  before  the  Congress  of  the  United  States,  but  before  the 
supreme  court  of  this  District,  in  an  unauthorized  and  indecent  attempt  to 
dictate  to  the  Department  of  the  Interior  what  it  should  do  to  promote  the 
interests  cf  that  New  York  corporation. 

But  before  that  reconveyance  by  the  corporation  to  McGarrahan  in  1866 
and  since,  the  same  corporation  issued  capital  stock,  based  upon  its  pre¬ 
tended  title  to  the  rancho,  to  the  amount  of  ten  or  eleven  million  dollars. 
That  stock  has  been  liberally  used  and  distributed  by  the  corporation  and 
McGarrahan,  their  agent,  to  advance  the  interests  of  both.  These  facts 
clearly  mark  this  deed  back  to  McGarrahan  as  a  mere  trick,  device,  blind, 
to  mislead  the  House  and  country,  and  enable  McGarrahan  the  more 
effectively  to  appeal  to  the  sympathies  of  gentlemen. 

But  another  very  significant  fact  in  this  connection  is,  that  after  this  pre¬ 
tended  reconveyance  to  McGarrahan,  the  Panoche  Grande  Quicksilver  Mining 
Company  issued  stock  in  large  amounts,  and  I  here  present  an  original  bond 
of  that  company,  and  incorporate  it,  as  follows  : 

Incorporated  under  the  Laws  of  the  State  of  New  York. 

[No.  104.]  [50  Shares.] 

Panoche  Guande  Quicksilver  Mining  Company  of  California. 

Capital,  Ten  Million  Dollars ,  in  Shares  of  $100  each. 

This  is  to  certify  that  William  McGarrahan  is  entitled  to  Fifty  Shares  in  the  capital 
stock  of  the  Panoche  Grande  Quicksilver  Mining  Company,  transferable  in  person  or  by 
attorney,  on  the  books  of  said  company  at  its  office  in  the  city  of  New  York,  on  sur¬ 
render  of  this  certificate. 

Witness  the  seal  of  the  company,  and  the  signatures  of  the  president  and  secretary, 
this  21st  day  of  May,  1868. 

Fred.  Franck,  Secretary.  B.  0!  CONNOR,  President. 

For  value  received,  I  hereby  assign  and  transfer  unto - - shares  of  the 

within  stock,  and  authorize - to  transfer  the  same  on  the  books  of  the  com¬ 

pany  on  surrender  of  this  certificate. 

Dated  this -  day  of  - ,  18— 

Now,  Mr.  Speaker,  before  I  go  further,  [  want  to  refer  to  a  few  things 
said  by  my  friend  from  Wisconsin,  [Mr.  Eldridge.]  He,  as  well  as  my 
friend  from  Kentucky,  [Mr.  Beck,]  told  you  that  this  was  not  a  controversy 
between  McGarrahan  aud  the  United  States,  but  that  it  was  a  contro¬ 
versy  between  Mr.  McGarrahan  and  the  New  Idria  Mining  Company. 

Mr.  ELDRIDGE.  And  that  is  so. 

Mr.  KERR.  I  say  that  is  not  true.  I  say  it  is  a  controversy  between 
McGarrahan  and  the  Panoche  Grande  Quicksilver  Mining  Company  of 
New  York,  on  the  one  side,  and  the  United  States  on  the  other.  Isay, 
what  the  gentlemen  all  know,  that  the  claim  of  McGarrahan  and  that  com¬ 
pany  in  New  York  in  this  case  covers  over  seventeen  thousand  acres  of 
land,  while  the  New  Idria  Mining  Company’s  claim  covers  but  four  hun¬ 
dred  and  eighty  acres  of  land.  I  say  that  the  claim  of  McGarrahan  does  not 
touch  the  land  claimed  by  the  New  Idria  Mining  Company.  It  does  not 
reach  to  it  at  all ;  and  the  survey  which  was  made  to  reach  to  and  embrace 
these  mines  was  a  fraudulent,  dishonest,  and  corrupt  survey,  procured  under 
a  dishonest  law  of  Congress,  made  by  a  dishonest  surveyor,  made  in  the 
interest  and  by  the  manipulation  and  for  the  money  of  McGarrahan. 

Tli  ;•  fore,  ir  is  no  issue  here  between  McGarrahan  and  the  New  Idria 
Mining  Company,  except  in  a  purely  incidental  and  collateral  way ;  and 
gentlemen  untruthfully  state  the  nature  and  substance  of  this  controversy 


5 


when  they  so  represent  it;  and  their  statements  are  calculated,  if  not  in¬ 
tended,  to  mislead  the  House.  If  this  claim  of  McGarrahan  fail,  then  the 
Government  and  the  people  own  the  seventeen  thou -and  live  hundred  acres 
of  land  which  he  claims,  and  it  will  then,  like  other  public  domain,  become 
subject  to  entry  and  pre-emption  under  the  law,  and  the  Xew  Idria  Mining 
Company,  as  well  as  any  citizen  of  the  country,  may  take  its  chance  under 
the  law  to  acquire  a  title  to  any  portion  of  it. 

Mr.  ELDRIDGE,  Will  the  gentleman  yield  for  a  question] 

Mr.  KERR.  For  a  mere  question,  yes. 

Mr.  ELDRIDGE.  I  wish  the  gentleman  from  Indiaua  [Mr.  Kf.rr] 
would  state  whether  there  have  not  been  every  day  and  every  hour  of  the 
session  of  the  committee  of  this  House  one  or  more  counsel  for  the  Xew 
Idria  Mining  Company  present,  and  whether  they  have  not  examined  every 
witness  with  the  exception  of  one  or  two  in  the  latter  part  of  the  case,  and 
whether  anybody  has  appeared  during  that  time  on  behalf  of  the  United 
States. 

Mr.  KERR.  My  answer  to  the  inquiries  of  the  gentleman  is  that  there 
have  appeared  before  our  committee  counsel  for  the  Xew  Idria  Mining 
Company.  They  appeared  there  as  much  in  behalf  of  the  Government  as 
of  themselves ;  and  because  this  fraudulent  and  dishonest  survey,  procured 
by  McGarrahau  and  this  Panoche  Grande  Quicksilver  Mining  Company  of 
Xew  York,  was  made  to  extend  over  and  embrace  their  quicksilver  mines, 
dishonestly  and  wrongfully ;  and  against  that  extension  of  the  lines  of  that 
survey  they  desired  protection  at  the  hands  of  the  House,  and  are  entitled 
to  it.  And  in  defence,  therefore,  of  their  claim,  they  appeared  before  us, 
and  did  try  to  resist  this  fraudulent  claim.  They  had  a  right  to  do  it,  and  in 
doing  so,  they  did  it  as  much  in  behalf  of  the  United  States  as  in  their  own 
behalf.  Why  ]  Gentlemen  should  remember  that  the  United  States  is  no 
more  a  defender  of  the  Xew  Idria  Mining  Company  here  than  they  are  the 
defender  of  every  pre-emptor  of  the  public  lands  throughout  the  length  and 
breadth  of  this  country.  It  is  the  duty  of  the  Government  of  the  United 
States  to  protect  and  maintain  the  public  domain,  in  order  that  the  honest 
citizens  of  this  country,  whether  corporations  or  individuals,  may  have  fair, 
just,  and  equal  opportunity  to  go  upon  those  lands,  locate  their  several 
claims,  and  prosecute  and  procure  their  titles  before  the  proper  departments 
of  the  Government  That  is  all  the  Xew  Idria  Mining  Company  asks. 

We  are  not  investigating  the  claim  of  the  Xew  Idria  Mining  Company. 
It  is  only  incidentally  and  collaterally  involved  in  this  investigation  at  all. 
If  we  reject  the  claim  of  McGarrahan,  what  do  we  do  ?  We  remit  this 
whole  controversy  to  the  tribunal  where,  under  the  laws  of  the  United 
States,  it  belongs,  to  wit,  the  Secretary  of  the  Interior  and  the  Commissioner 
of  the  General  Land  Office,  whose  duty  it  is,  under  the  law,  to  pass  upon 
all  claims  of  this  kind,  and  issue  patents  to  whom  they  belong.  That  is  the 
true  position  in  this  case. 

Mr.  Speaker,  here  I  want  in  a  few  words  to  refer  again  to  that  dishonest 
survey  procured  by  McGarrahan  and  his  corporation.  In  the  conveyance 
back  from  the  Panoche  Grande  Quicksilver  Mining  Company  to  William 
McGarrahan,  bearing  date  on  the  1st  day  of  Xovember,  1S66,  in  con¬ 
sideration  of  the  sum  of  one  dollar,  they  conveyed  “  all  that  certain  tract  or 
rancho  lying  and  being  in  the  counties  of  Monterey  and  Fresno,  State  of 
California,  and  known  as  the  Panoche  Grande  rancho,  being  the  same  lands 


6 


for  which  a  decree  of  confirmation  has  been  entered  in  favor  of  Vicente  P. 
Gomez,  in  the  district  court  of  the  United  States  for  the  southern  district  of 
California.”  The  boundaries  of  the  tract  are  then  given  by  name,  and  cor- 
respond  exactly  with  the  boundaries  given  by  Gomez  in  his  original  petition 
for  the  grant  to  the  Mexican  Governor,  wherein  the  area  desired  and  em¬ 
braced  within  said  boundaries  is  stated  in  the  petition  to  be  “  three  square 
leagues.” 

This  is  the  conveyance  under  which  McGarrahan  now  claims,  and  it  will 
be  perceived  by  reference  to  the  description  of  the  boundaries,  and  the  area 
embraced  therein,  that  it  is  essentially  different  from  the  tract  which  the 
House  bill  provides  he  may  enter.  The  latter  tract  is  established  by  the 
Dyer  survey,  made  four  years  prior  to  the  date  of  this  conveyance  back  to 
McGarrahan,  and  yet  he  chose  then  to  take  the  laud  by  the  description 
given  in  the  deed  to  him  from  Gomez  rather  than  by  the  enlarged  boundaries 
fixed  by  the  survey  of  1S62,  which  gives  him  an  additional  square  league, 
and  describe  his  tract  as  follows  : 

“  North  by  Julian  Ursua  ;  westerly  by  the  lands  of  Francisco  Arias  ;  east  by  the  Tulare 
vallev,  and  south  by  the  Santa  Anna  river.” 

The  southern  boundary  in  the  original  petition  of  Gomez  to  the  Mexican 
Governor  is  called  the  serrania,  (mountain  range,)  and  in  the  deed  of  Gomez 
to  McGarrahan  of  December  22,  1857,  it  is  called  “  the  hills.”  In  the  Dyer 
survey,  under  which  he  now  claims,  it  is  neither  “the  mountain  range”  nor 
“  the  hills,”  but  “  the  Santa  Anna  river,”  and  here  the  fraud  of  the  survey 
becomes  most  apparent,  for  McGarrahan  and  his  surveyor,  in  order  to  em¬ 
brace  the  mineral  lands  adjacent  to  “  his  agricultural  tract,”  leaps  over  “the 
mountain  range”  or  “  the  hills,”  and  fixes  his  southern  boundary  on  “  the 
Santa  Anna  river.”  In  other  words,  to  enable  him  and  the  Xew  York 
corporation  to  grab  the  runes  on  the  mountains,  he  deserts  his  original 
claim  as  made  by  Gomez,  for  agricultural  lands  in  the  valley,  and  attempts 
to  stretch  out  his  boundaries  some  seventeen  miles  up  the  mountain  side,  and 
thus  embrace  the  property,  the  four  hundred  and  eighty  acres,  claimed  by 
the  Xew  ldria  Mining  Company. 

There  was  but  a  single  survey  ever  made  under  the  law  of  June  2,  1S62, 
under  which  this  survey  was  made  by  direction  of  McGarrahan  himself, 
and  in  his  personal  presence.  That  law  declared  that  surveys  made  under 
it  should  “  only  be  prima  facie  evidence  of  the  true  location  of  the  grant.” 
The  proper  officer  forbade  anymore  work  to  be  done  under  that  law.  The 
testimony  in  this  case  clearly  shows  that  this  survey  was  not  and  within 
the  time  in  which  it  was  claimed  to  have  been  made,  could  not  have  been 
fairly  and  honestly  made,  and  therefore  it  ought  not  to  be  received  as  proof 
of  the  true  location  of  the  Panoche  Grande  grant,  even  if  McGarrahan  were 
the  true  owner  thereof.  There  was  manifest  and  corrupt  complicity  be¬ 
tween  the  surveyor  and  McGarrahan.  This  felonious  attempt  of  the  Pa¬ 
noche  Grande  Quicksilver  Mining  Company  of  Xew  York,  by  their  supple 
a^-ent,  McGarrahan,  to  extend  their  pretended  boundaries  up  the  mountain 
and  seize  the  mines  in  the  possession  of  the  Xew  ldria  Company,  was  an 
after-thought,  suggested  to  McGarrahan  and  Ord  by  the  discovery  of  the 
mines,  in  1852,  by  the  grantors  of  the  latter  company. 

The  gentleman  on  the  other  side  persisted  in  repeating  the  assertion  that 
the  Xew  ldria  mines  were  discovered  in  1858,  after  McGarrahan  had  pur¬ 
chased  from  Gomez,  and  had  become  a  partner  with  Ord,  while  the  facts 


7 


in  the  sworn  proof  are,  that  the  New  Idria  mines  were  discovered  early  in 
1852,  more  than  a  year  before  the  map  and  petition  were  offered  before  the 
land  commission,  which  discovery  most  probably  suggested  the  manu¬ 
facturing  of  a  grant  that  should  be  made  to  cover  the  mine,  hence  all  the 
subsequent  frauds  in  the  history  of  this  notorious  Panoche-Grande-Quick- 
silver-Mining- Company-McGarrahan  case. 

One  word  now  in  reference  to  Judge  Black  in  connection  with  this  case. 
By  way  of  throwing  mud,  by  way  of  soiling  the  reputation  of  everybody 
in  connection  with  the  case  who  opposes  this  claim,  it  has  been  broadly  in¬ 
sinuated  that  Judge  Black  has  been  corrupt  and  dishonest  in  his  connection 
with  it.  I  say  to  this  House  that  after  having  Judge  Black  before  the 
committee,  and  all  the  other  testimony  made  in  this  case,  I  look  upon  it 
now  as  not  only  unjust  but  dishonest  to  impute  personal  or  official  cor¬ 
ruption  to  Jeremiah  8.  Black  in  connection  with  this  case.  Notwithstand¬ 
ing  the  wrangling  criminations  and  insinuations  of  counsel  before  the  com¬ 
mittee,  there  is  nothing  in  the  record  which,  fairly  and  impartially  weighed, 
attaches  any  wrong,  official  impropriety,  or  personal  dishonesty  to  Judge 
Black.  On  the  contrary,  the  whole  case  shows  that  he  was  only  solicitous 
to  protect  the  Government  and  defeat  a  corrupt  and  baseless  claim. 

Now,  I  want  to  answer  for  him  out  of  his  own  mouth.  I  read  from  what 
he  has  stated  under  oath  in  reference  to  this  case.  Speaking  of  the  manner 
in  which  these  cases  came  before  Congress,  he  says  : 

“  It  was  my  duty  to  oppose  a  false  and  fradulent  claim  any  how.  In  Dine  of  these 
cases  out  of  ten  the  land  in  controversy  was  occupied  by  persons  who  had  bought,  or 
expected  to  buy,*  the  whole  or  part  of  it  from  the  United  States.  In  some  cases  cities 
and  large  towns,  in  others  great  numbers  of  agricultural  people,  were  in  danger  of  having 
the  fruits  of  their  labor  and  money  swept  away  by  forged  Mexican  grants.  They  had 
no  protection  for  their  rights  except  what  they  could  get  from  the  courts.  The  confirma¬ 
tion  of  a  Mexican  title  was  an  estoppel  not  only  upon  the  United  States,  but  upon  all 
persons  claiming  under  them. 

“In  such  a  case  there  will  be  no  question  raised  about  any  other  title  than  that  of 
which  confirmation  was  sought.  I  expressed  officially  what  I  thought  and  still  think 
was  the  duty  of  my  effice,  in  a  letter  on  the  Castelle  case,  addressed  to  the  President, 
March  28,  1859  :  1  Yield  everything  that  law  and  justice  demand,  sift  doubtful  claims  to 
the  bottom,  and  show  no  quarter  to  those  which  appear  to  be  corrupt.’  I  believed  this 
one  to  be  corrupt,  and  I  resisted  it  accordingly.  But  I  did  it  fairly.  I  alleged  no  fact 
and  I  asserted  no  legal-proposition  which  the  claimant  had  not  a  full  opportunity  to  con¬ 
trovert;  and  I  think  1  never  made  a  point  which  the  judges  of  the  Supreme  Court  did 
not  unanimously  sustain.  Whosoever  says  that  I  received  anything  for  this  except  my 
salary,  or  that  my  official  action  was  influenced  by  any  motive  except  a  sense  of  pure 
duty,  speaks  falsely.  I  went  out  of  office  with  bands  as  clean  as  they  were  empty. 

“  Mr.  Stanton  was  my  successor,  and  had  been  my  assistant.  To  my  certain  knowl¬ 
edge  he  took  exactlv  the  same  view  of  this  case  that  I  did. 

“  After  March,  1861,  I  had  no  concern  in  the  business.  Mr.  Bates  employed  Mr.  Stan¬ 
ton  as  special  counsel  in  this  and  other  cases.  He  did  not  employ  me;  that  is  to  sav, 
not  in  this  ease,  but  he  did  in  some  others,  where  Mr.  Stanton  had  been  retained  against 
the  United  States.  1  had  no  connection  with  it,  and  took  no  part  in  it  until  two  vears 
or  upward  after  I  went  out  of  office.  Then  I  was  asked  by  Mr.  Shepherd,  of  Yew 
York,  and  Mr.  Latham,  Senator  from  California,  and  subsequently  by  Mr.  Goold,  if  I 
would  consent  to  appear  for  the  United  States  with  the  Attorney  General,  and  aid  him 
in  opposing  the  claim  of  Gomez.  I  suppose  nobody  will  deny  that  it  was  perfectly  right 
and  proper  for  me  take  the  case  at  that  time  and  under  those  circumstances.  I  was  as 
free  as  any  other  member  of  the  profession.  The  fact  that  I  had  been  Attorney  General 
certainly  did  not  disfranchise  me.  I  never  heard  a  doubt  of  the  professional  or  moral 
propriety  expressed  by  any  human  being.  I  have  done  the  like  in  many  other  cases.  So 
have  all  persons  similarly  situated.  The  then  Attorney  General,  Mr.  Bates,  gladly  ac¬ 
cepted  the  aid  which  I  was  employed  to  render  in  the  case.  It  shared  the  labor  and  respon¬ 
sibility,  and  it  saved  him  the  necessity  of  employing  special  counsel  and  paying  them  out 


8 


of  the  public  funds  ;  for  Mr.  Stanton  had  by  this  time  become  Secretary  of  War,  and  given 
up  the  practice.” 

I  say,  therefore,  that  these  flings  against  the  distinguished  ex-Attorney 
General  are  at  once  uncalled  for  and  unjust,  and  the  gentleman  from  Ken¬ 
tucky  [Mr.  Beck  j  relieves  his  charges  of  but  little  of  their  poison  when  he 
compliments  the  great  ability  of  Mr.  Black  at  the  expense  of  his  personal 
and  official  integrity. 

Again,  in  speaking  of  his  connexion  with  this  case  in  his  efforts  to  defeat 
this  fraud  upon  the  Government  in  the  Supreme  Court,  he  says : 

“  I  notified  the  court  of  the  evidence  I  had  of  these  facts.  About  the  truth  of  the  facts 
I  had  no  doubt,  because  Mr.  Stanton  was  perfectly  incapable  of  making  a  false  report  to 
me.  His  judgment  upon  cases  of  this  kind  was  as  good  as  that  of  any  other  man  living. 
When  I  got  the  evideuce,  whatever  it  was,  I  considered  it  as  simply  confirming  his  state¬ 
ments  and  confirming  my  previous  belief.” 

The  gentleman  from  Wisconsin  has  undertaken  further  to  say — and  I  was 
exceedingly  surprised  to  hear  it — that  the  district  court  of  California,  after 
a  solemn  adjudication  of  this  case,  decided  it  in  favor  of  McGarrahan,  or 
Gomez,  which  is  the  same  thing.  I  say  to  him,  and  I  say  to  this  House 
and  the  country,  that  the  United  States  district  court  of  California  never 
examined  this  case,  never  heard  one  particle  of  testimony,  never  even  looked 
into  the  record,  never  investigated  it  at  all ;  but  in  all  its  action  it  was  con¬ 
trolled  by  the  dishonest,  selfish,  corrupt  suggestion  of  Pacificus  Ord,  whose 
complicity  in  the  fraud  is  clear. 

Mr.  ELDRIDGE.  The  gentleman  from  Indiana  is  quite  mistaken  in 
what  he  says  in  regard  to  my  statement.  I  stated  most  distinctly  and  em¬ 
phatically  that  the  only  tribunal  that  had  before  it  the  merits  of  the  case  was 
the  land  commission  ;  that  they  alone  examined  the  testimony  ;  that  they 
alone  had  the  proofs  before  them ;  that  no  other  court  or  tribunal  ever  had 
the  merits  of  the  case  before  them  for  examination. 

Mr.  KERR.  Mr.  Speaker,  I  say  in  reply  to  that  remark  that  the  gen¬ 
tleman  is  in  this  as  much  in  error  as  in  anything  else  he  has  said.  I  say 
that  the  Supreme  Court  of  the  United  States  had  before  it  precisely  the 
same  record,  the  same  evidence,  the  same  facts  which  were  before  the  com¬ 
mission  organized  under  the  treaty  of  Guadalupe  Hidalgo.  It  could  not  be 
otherwise.  The  imperative  requirements  of  the  law  settled  that.  That 
commission  was  required  to  put  upon  its  record  everything,  whether  of 
pleading  or  evidence,  which  was  presented  to  it  in  each  case. 

Mr.  ELDRIDGE.  I  hope  the  gentleman  does  not  intend  to  misrepre¬ 
sent  me.  I  stated  that  the  record  went  up  to  the  district  court  and  the 
Supreme  Court ;  but  that  those  courts  only  examined  and  were  only 
authorized  to  examine  the  record  made  up  by  the  board  of  commissioners ; 
that  the  latter  was  the  only  tribunal  that  adjudicated  upon  the  facts. 

Mr.  KERR.  Mr.  Speaker,  the  gentleman’s  assumption  now  is  as  base¬ 
less  as  any  other  that  he  has  made.  I  say  that  in  this  case  and  in  all 
these  cases  (and  in  what  I  say  I  am  sustained  by  the  adjudicated  cases  in 
the  Supreme  Court  of  the  United  States)  the  jurisdiction  of  that  court  was 
as  complete  and  perfect  over  this  case  as  over  any  other  case ;  that  they 
had  before  them  not  only  what  appeared  upon  the  mere  technical  record 

furnished  by  the  commission,  but  that  in  that  record,  in  pursuance  of  the 
very  law  under  which  the  commission  was  organized,  there  was  embodied 
every  particle  of  evidence  upon  which  the  commission  had  acted,  so  that 


9 


when  the  record  went  up  to  the  Supreme  Court  it  presented  the  case  pre¬ 
cisely  as  it  had  been  presented  before  the  commission  in  its  facts,  testimony, 
proofs,  and  pleadings.  There  was  therefore  no  reason  in  the  world  why 
the  Supreme  Court,  on  the  hearing  of  the  appeal  could  not  act  just  as 
wisely,  judiciously,  and  advisedly  as  the  commission  or  the  district  court 
or  any  other  tribunal  on  earth. 

In  this  position  I  am  sustained  by  the  express  and  solemn  decision  of  the 
Supreme  Court,  made  on  a  review  of  all  this  evidence  and  record,  and  I  hope 
gentlemen  will  give  me  their  attention  while  I  read  a  brief  extract  from  that 
decision.  It  is  said  that  this  case  was  never  considered  on  its  merits  else¬ 
where  than  before  the  commission  I  say  it  was  considered  as  much  upon 
its  merits  in  the  Supreme  Court  as  it  was  before  that  commission  ;  that 
under  the  law,  and  with  the  record  before  them,  the  information  and  the 
power  of  the  Supreme  Court  were  as  full,  ample,  and  perfect  as  those  of  the 
commission.  And  so  the  court  in  1865  says  : 

“  Regarding  the  case  as  regularly  before  the  court,  it  becomes  necessary  to  examine  the 
merits  of  the  claim.  Some  suspicion  attaches  the  claim,  because  it  is  made  for  four 
leagues  of  land,  whereas  the  only  document  introduced  in  support  of  it,  which  is  of  the 
least  probative  force,  represents  the  original  claimant  as  having  asked  for  but  three 
leagues.  Document  referred  to  purports  to  be  the  petition  of  the  claimant  to  the  Gov¬ 
ernor,  and  there  is  appended  to  it  the  usual  informe  ;  but  there  is  no  concession  or  grant, 
nor  is  there  any  satisfactory  evidence  that  any  title  of  any  kind  was  ever  issued  by  the 
Governor  to  the  claimant.  Be  states  in  his  petition  to  the  land  commissioners  that  he 
obtained  the  map  in  the  record  from  the  proper  officers  of  the  department ;  but  the 
alleged  fact  is  not  satisfactorily  proved.  Four  witnesses  were  examined  by  the  claim¬ 
ants  before  the  land  commissioners,  but  only  one  of  the  number  pretended  that  he  had 
ever  seen  the  grant,  and  his  statements  are  quite  too  indefinite  to  be  received  as  satis¬ 
factory  proof. 

“  Instead  of  proving  possession  under  the  grant,  it  is  satisfactorily  shown  that  he 
never  occupied  it  at  all,  and  it  is  doubtful  if  he  ever  saw  the  premises  during  the  Mexi¬ 
can  rule.  Land  commissioners  rejected  the  claim,  but  before  it  came  up  for  hearing  in 
the  district  court  his  attorney  had  been  appointed  district  attorney  of  the  United  States  ; 
and  the  proofs  show  that  he  conveyed  two  leagues  of  the  land  to  the  district  attorney. 
Circumstances  of  the  confirmation  of  the  claim  in  the  district  court  are  fullv  stated  in 

V 

the  opinion  of  this  court  given  when  the  mandate  was  revoked  and  recalled.  Comment 
upon  those  circumstances  is  unnecessary ,  except  to  say  that  the  confirmation  was  fraudulently 
obtained. 

“Although  the  decree  was  fraudulently  obtained,  still,  inasmuch  as  it  is  correct  in 
form,  it  is  sufficient  to  sustain  the  appeal  for  the  purpose  of  correcling  the  error.  Party 
who  procured  it  cannot  be  allowed  to  object  to  its  validity  as  a  means  of  perpetuating 
the  fraud,  especially  as  he  did  not  appeal  from  the  decree.”  (3  Wallace,  p.  76G.) 

It  is  not  needful  further  to  refer  to  the  language  of  the  court  than  to  show 
that  the  confirmation  was  fraudulently  obtained.  Yet  the  gentleman  says 
that  the  Supreme  Court  never  passed  that  kind  of  condemnation  on  the  of¬ 
ficial  fraud  and  rascality  of  Pacificus  Ord.  The  court,  in  the  twenty-third 
of  Howard,  in  the  first  of  Wallace,  and  third  of  Wallace,  say  that  by  reason 
of  the  conduct  of  that  officer,  and  the  deception  thus  practised  on  the  dis¬ 
trict  court  of  California,  all  these  proceedings  were  fraudulent  aud  rotten, 
and  therefore  ought  to  be  set  aside.  Hence  the  power  of  the  court  is  inter¬ 
posed  to  defeat  the  fraud. 

But  we  are  told  that  the  court  has  no  jurisdiction,  and  I  am  again  unable 
to  agree  with  my  friend  from  Wisconsin,  good  and  excellent  a  lawyer  as  he 
is,  when  he  says  that  on  the  subject  of  jurisdiction  the  decision  of  the  Su¬ 
preme  Court  is  not  final ;  that  it  amounts  to  nothing,  and  that  it  may  be 
set  aside  collaterally  or  in  any  other  way.  It  is  a  sufficient  answer  to  that 
to  say  that  the  Supreme  Court  of  the  United  States  is  a  court  beyond 


10 


which,  in  the  good  providence  of  God  in  this  country,  there  is  no  appeal. 
Its  decision  is  absolutely  final,  and  no  court  in  the  country,  unless  a  court 
organized  in  the  spirit  of  rebellion  and  treason,  can  ignore  and  set  aside  the 
judgments  of  that  court.  Its  decision  in  this  case  was  not  coram  non  judice, 
but  in  all  respects  legal,  regular,  and  conclusive. 

Now,  Mr.  Speaker,  I  beg  the  attention  of  gentlemen  while  I  give  in  some 
detail  a  brief  historical  statement  of  the  facts  connected  with  this  controversy 
in  the  courts.  The  claim  of  Gomez,  the  grantor  of  McGarrahan,  having 
been  adjudged  and  conceded  to  have  been  unfounded  and  fraudulent,  the 
question  is  whether  the  succession  of  McGarrahan  thereto  has  conferred 
upon  him  an  equity  which  this  House  ought  to  recognize  and  support, 
March  6,  1855,  the  land  commission  rejected  the  Gomez  claim.  Thereupon 
an  appeal  was  taken  by  claimant’s  attorney,  Pacificus  Ord,  to  the  district 
court  for  the  northern  district  of  California,  and  was  subsequently  trans¬ 
ferred  to  the  district  court  for  the  southern  district,  at  the  instance  of  Ord, 
who  was  shortly  afterwards  appointed  attorney  of  the  United  States  for  said 
southern  district. 

Why  did  he  take  this  case  to  the  southern  district  court  ?  Because  in 
that  court  he  was  attorney  of  the  United  States,  and  could  maintain  his  own 
title  and  the  title  of  Gomez  in  a  court  where  he  had  power.  The  transfer 
was  made  on  the  application  of  Ord,  the  owner  of  half  this  grant,  which  he 
was  pretending  to  protect  on  behalf  of  the  nation.  He  and  his  co-conspira¬ 
tor,  McGarrahan,  desired  the  case  in  a  tribunal  where  they  could  abuse  the 
confidence  of  the  court  to  procure  a  confirmation. 

On  the  24th  of  November,  1856,  while  district  attorney,  Ord  received 
from  Gomez,  for  the  nominal  consideration  of  one  dollar,  a  deed  of  convey¬ 
ance  for  an  undivided  half  of  the  land  in  controversy,  namely,  the  Panoche 
Grande  rancho,  and  this  pending  the  appeal  in  the  district  court. 

On  the  5th  of  J une,  1856,  Ord  procured  a  brother  lawyer,  a  man  named 
Hartman,  to  move  the  court  to  reverse  the  decision  of  the  land  commission 
and  confirm  the  grant,  stating  in  open  court,  in  his  official  capacity,  that  it 
was  a  case  in  which  there  was  no  dispute.  With  what  grace  could  McGar¬ 
rahan,  in  the  person  of  his  co-conspirator  against  the  rights  of  the  United 
States  and  all  of  its  people — with  what  grace  could  McGarrahan,  in  the 
person  of  this  Pacificus  Ord,  come  up  before  that  United  States  court  and 
say  that  it  was  a  case  in  which  there  was  no  dispute  ?  Yet  this  was  stated 
by  Ord,  and  that  the  United  States  had  no  objection  to  the  confirmation  of 
the  grant ;  and  thereupon  an  order  of  confirmation  was  made,  but  no  decree 
entered.  At  this  time  Mr.  Ord  was  the  owner  of  an  undivided  half  of  the 
land.  I  want  gentlemen  to  remember  this  all  the  time  as  most  vital  and 
material  to  the  just  determination  of  this  case.  Before  a  decree  of  confirma¬ 
tion  was  entered,  to  wit,  December  22,  1857,  McGarrahan,  in  considera¬ 
tion  of  Si,  100,  received  from  Gomez  a  deed  of  conveyance  for  the  land  in 
controversy,  which  said  deed  contains  the  following  reservation  : 

‘‘Subject,  however,  to  an  agreement  heretofore  made  by  the  party  of  the  first  part 
(Gomez)  to  and  with  Pacificus  Ord,  Esq.,  by  which  the  said  party  of  the  first  part  is  to 
convey  to  said  Ord  an  undivided  interest  in  said  rancho  or  tract  of  land,  not  exceeding 
the  one  undivided  half  thereof.” 

It  is  manifest  that  McGarrahan  also  had  notice  of  Ord’s  unlawful  con¬ 
nection  with  the  case  and  of  his  interest  in  the  land  by  the  express  reserva¬ 
tion  just  quoted  from  his  very  deed.  McGarrahan  was  put  upon  inquiry ; 


li 


the  act  of  his  co-tenant,  Orel,  in  joint  behalf,  was  his  act.  He  was,  therefore, 
particeps  criminis  in  Orel’s  rascality,  anel  has  no  equity.  At  the  elate  of 
this  conveyance  no  decree  of  confirmation  had  been  entered  by  the  court. 
An  order  of  confirmation  had  been  made,  it  is  true;  but  the  first  decree  in 
the  case  was  filed  and  entered  January  1 ,  1858,  as  of  June  5,  1857,  con¬ 
firming  the  land  as  “  three  square  leagues.”  Subsequently,  to  wit,  on  the 
Sth  of  February,  1858,  another  decree  was  filed  and  entered  as  of  June  5th, 
1857,  confirming  the  laud  as  “  four  square  leagues.”  This  decree  was 
entered  at  the  instance  and  at  the  request  of  Pacificus  Ord,  whose  heart 
and  whose  hands  are  stained  all  over  with  corruption. 

From  this  it  appears  conclusively  that  the  confirmation  by  decree  of  the 
district  court  of  the  alleged  grant  was  not  actually  made  until  the  Sth  of 
February,  1S58,  as  was  decided  by  the  Supreme  Court  (1  Wallace’s  Re¬ 
ports,  699,  and  3  Wallace’s  Reports,  page  763,  in  the  case  of  United  States 
vs.  Gomez)  subsequent  to  the  date  of  the  conveyance  from  Gomez  to  Mc- 
Garrahan,  and  both  the  decrees  of  January  and  February,  1858,  were  filed 
by  Ord  ;  and  hence  it  is  but  fair  to  presume  that  McGarrahan  himself  was 
privy  to  the  transactions  of  that  person  respecting  their  common  property, 
especially  after  the  date  of  his  conveyance  to  McGarrahan,  to  wit,  Decem¬ 
ber  22,  1857  ;  and  as  Mr.  Ord  appeared  as  the  joint  tenant  of  Gomez,  so 
he  did  as  the  joint  tenant  of  his  successor,  McGarrahan  ;  and  in  this  respect 
the  latter  stands  parliceps  criminis  in  the  prosecution  of  the  original  fraudu¬ 
lent,  claim,  and  the  means  resorted  to  by  himself  and  his  co-tenant,  Ord, 
to  secure  final  confirmation  of  the  fraudulent  decree  of  February  8,  1  858, 
appear  by  reference  to  the  case  of  the  United  States  vs.  Gomez,  (23  How¬ 
ard,  page  33S,)  which  I  wish  I  had  time  to  read. 

In  that  case  it  is  fully  shown  that  McGarrahan  caused  a  false  transcript 
from  the  court  below  allowing  an  appeal  in  the  case  to  the  Supreme  Court 
of  the  United  States,  when  in  point  of  fact  no  appeal  had  at  that  time  been 
allowed  or  taken.  And  so  also  the  Supreme  Court  in  that  case  decided. 
The  object  of  this  was  to  procure  the  docketing  and  dismissal  of  the  cause 
by  that  court  for  want  of  prosecution  of  the  appeal,  which  was  done,  and 
fraudulently  done ;  but  at  the  next  term,  the  facts  having  been  brought  to 
the  attention  of  the  court,  the  case,  on  motion  of  the  Attorney  General, 
was  rejected,  and  the  appeal  dismissed  by  reason  of  the  fraud  to  which  I 
have  referred. 

In  further  verification  of  these  statements,  I  will  insert  an  extract  from 
the  judgment  of  the  Supreme  Court  in  23  How.,  p.  339,  rendered  in  1863. 
The  court  say  that  the  evidence  before  them  establishes — 

“  That  Mr.  Ord  became  the  purchaser  of  half  the  land  in  controversy  from  Gomez, 
the  claimant,  when  he  was  the  district  attorney  of  the  United  States  ;  that  whilst  he  was 
district  attorney  he  prepared  in  his  own  hand  the  paper  signed  by  S.  0.  Crosby,  for  the 
removal  of  the  cause  from  the  board  of  land  commissioners  to  the  district  court;  that 
Mr.  Ord  did  not  officially,  as  district  attorney,  represent  the  United  States  in  the  case 
in  the  district  court,  in  any  one  particular,  but  allowed  it  to  be  done  by  others  who  were  in¬ 
terested  in  establishing  the  claim  of  Gomez ,  to  zohoni  he  gave  his  official  confidence ,  and  who 
are  shown  by  the  record  not  to  have  been  the  retained  attorneys  of  Gomez  ;  that  he  'permitted  a 
judgment  to  be  taken  against  the  United  States  without  argument ,  or  the  production  of  proof  to 
establish  the  validity  of  the  claimant1  s  right  to  the  land ,  by  saying  to  the  court,  in  his  official 
character ,  that  the  United  States  had  no  objection  to  the  confirmation  of  the  claim.  And  it  is 
established  by  the  record  itself  that  no  appeal  has  been  given  to  the  United  States  by  the 
court  below 

This  is  from  the  unanimous  judgment  of  the  court. 


12 


The  next  judicial  step  in  the  case  was  the  setting  aside  of  the  fraudulent 
decree  of  confirmation  by  Judge  Ogier,  of  the  district  court  for  the  southern 
district  of  California,  on  the  21st  day  of  March,  1861,  in  consequence  of  the 
discovery  of  the  fraud  practised  upon  the  court  by  Ord  in  procuring  it,  and 
that  fraud  is  set  forth  and  exposed  in  first  and  third  Wallace,  in  the  same 
case  to  which  I  have  already  referred.  .  Mr.  Speaker,  the  annulling  order  of 
Judge  Ogier  came  up  for  review  before  Judge  Haight,  his  successor,  Judge 
Ogier  having  died  meanwhile,  on  the  4th  of  August,  1862.  McGarrahan’s 
counsel  moved  to  rescind  it,  which  Judge  Haight  reluctantly  did,  because, 
as  held  by  him,  the  court  had  no  jurisdiction  in  the  premises  when  the  order 
of  March  21,  1861,  was  made. 

I  wish  I  had  time  to  read  from  the  reasons  assigned  by  Judge  Haight  for 
rescinding  the  previous  order  of  his  predecessor.  He  says  in  his  order 
rescinding  it  that  he  was  not  surprised  at  the  manifestation  of  a  feeling  of 
disapprobation  and  abhorrence  by  Judge  Ogier  when  he  discovered  the  fraud 
which  had  been  practised  upon  him,  and  by  reason  of  which  he  set  aside  the 
previous  order  of  his  own  court  and  ordered  a  trial  de  novo,  so  that  for  the 
first  time,  for  once  at  least,  before  a  final  order  is  made  in  his  court  in  the 
case,  he  might  judicially  hear  and  examine  the  case,  which  hitherto  by  rea¬ 
son  of  the  fraud  of  Ord  he  had  been  prevented  from  doing.  From  the  de¬ 
cision  of  Judge  Haight,  setting  aside  Ogier’s  annulling  order,  and  restoring 
the  fraudulent  decree  of  February  8,  1858,  the  United  States  appealed  to 
the  Supreme  Court  of  the  United  States,  and  here  the  record  shows  that 
McGarrahan  resorted  to  almost  every  conceivable  trick  and  fraud  and  cor¬ 
ruption  to  prevent  the  transmission  of  the  case  to  the  Supreme  Court,  and 
was  after  a  long  and  most  remarkable  struggle  defeated. 

The  Supreme  Court,  in  1865,  in  another  unanimous  judgment  against 
this  iniquitous  conspiracy,  reported  in  3  Wallace,  p.  765,  says  : 

“  Six  times  the  demand  was  made  of  the  clerk  for  the  transcript,  and  the  request,  as 
often  as  it  was  made,  was  refused.  Such  demand  was  made  by  the  special  counsel  of  the 
United  States,  and  by  the  district  attorney,  and  by  the  authority  and  direction  of  the 
Attorney  General.  Throughout,  the  clerk  refused  to  furnish  the  transcript.” 

The  transcript  was  procured  and  the  case  regularly  docketed  in  the 
Supreme  Court.  McGarrahan’s  counsel  then  sought  to  have  the  appeal 
dismissed  because  it  had  not,  as  alleged,  been  taken  within  five  years  from 
the  rendition  of  the  decree  of  confirmation  by  the  district  court.  That 
motion  was  denied  by  the  Supreme  Court,  and  the  opinion  of  that  court 
adverse  to  the  motion  of  McGarrahan’s  counsel  is  set  forth  in  1  Wallace,  p. 
702,  and  in  that  opinion  of  the  Supreme  Court  by  Justice  Clifford,  which  is 
beyond  all  question  sound  in  law,  the  Supreme  Court  decided  that  every 
ground  of  the  motion  was  untenable;  that  the  case  should  not  be  dismissed  ; 
that  the  jurisdiction  of  the  Supreme  Court  over  the  appeal  was  complete 
and  perfect,  and  that  if  these  gentlemen  representing  McGarrahan  or  the 
Panoche  Grande  Quicksilver  Mining  Company  of  New  York,  or  any  other 
rotten  corporation  anywhere  else  in  the  country,  desired  to  assert  any  other 
remedy,  they  must  do  it  under  the  rules  of  the  court  by  suggesting  a  dimi¬ 
nution  of  the  record,  and  going  back  to  California  with  a  certiorari  requiring 
that  the  record  be  made  perfect. 

Why  did  they  not  do  that  thing1?  It  was  because  —  and  the  record  and 
the  testimony  justifies  me  in  saying  it — because  the  parties  and  their  law¬ 
yers  understood  that  they  had  no  hope  for  the  salvation  of  this  case  except 


13 


by  forcing  their  fraudulent  proofs  down  the  throat  of  the  Supreme  Court 
and  rushing  the  case  through  against  law  and  truth.  The  appeal  having 
been  sustained,  the  case  came  on  for  decision  on  the  merits,  and  the  opinion 
of  the  court  therein  will  be  found  in  3  Wallace,  which  I  have  already  read. 

Now,  sir,  a  word  or  two  in  reply  to  another  point  suggested  by  the  gen¬ 
tleman  from  Wisconsin,  as  to  the  question  of  the  jurisdiction  of  the  Supreme 
Court  in  the  premises.  The  record  shows  that  an  order  of  confirmation  in 
favor  of  the  McGarrahan  grant  or  Gomez  grant  was  made  by  the  district 
court  of  California  on  the  5th  of  June,  1857,  but  no  decree  was  entered 
until  January  7,  1858,  and  even  that  was  not  a  final  decree,  for  on  the  8th 
of  February  following  another  decree  was  entered  confirming  the  same 
lands,  with  an  additional  square  league,  to  the  same  parties.  This  decree 
stood  unreversed  until  the  2lst  of  March,  1S61,  when  the  same  judge  set  it 
aside,  and  it  remained  set  aside  and  annulled  till  the  4th  of  August,  1862, 
when  it  was  reinstated  by  Judge  Haight.  From  h’s  decision  the  United 
States  appealed,  and  the  appeal  was  allowed. 

It  is  true  that  Judge  Haight  subsequently,  to  wit,  in  December,  1862,  set 
aside  his  own  order  ailowiug  the  appeal ;  but  the  case  was  then  beyond  his 
jurisdiction,  and  the  question  as  to  the  regularity  of  the  appeal  belonged  to 
the  appellate  tribunal,  the  Supreme  Court  of  the  United  States,  which,  as  I 
have  already  stated,  decided  that  it  had  jurisdiction,  and  decided  that  the 
appeal  had  been  properly  taken  within  the  time  allowed  by  law.  A  brief 
review  of  the  facts,  bearing  in  mind  those  I  have  already  given  with  so 
much  particularity,  will  show  that  this  was  true.  The  order  of  confirma¬ 
tion  was  made  on  the  5th  of  June,  1857 ;  the  final  decree  therein  was  en¬ 
tered  on  the  8th  of  February,  1858,  and  this  was  the  first  record  from 
which  a  transcript  could  be  made  sufficient  to  explain  and  support  the 
appeal. 

On  this  point  the  same  court,  in  another  unanimous  opinion  in  1863,  in 
1  Wallace,  p.  699,  says  : 

u  Plainly  there  was  no  decree  of  ati}r  kind  in  the  case  until  the  7th  of  January,  1858, 
and  as  that  was  ordered  to  be  amended  by  substituting  another  in  its  stead,  the  final  de¬ 
cree  in  the  case  was  that  of  the  8th  of  February,  1858.  Five  years,  therefore,  had  not 
elapsed  after  the  decree  was  entered  before  the  appeal  was  taken  ;  and  consequently  the 
ground  assumed  in  the  motion  to  dismiss  cannot  be  sustained.” 

And  from  the  date  of  it  the  United  States  had  bylaw  five  years  in  which 
to  appeal,  to  wit:  from  February  8,  185S,  to  February  8,  1863.  The  appeal 
was  taken  on  the  4th  day  of  August,  1862.  Besides,  the  law  contemplates 
that  the  decree  from  which  the  appeal  may  be  taken  shall  be  in  force  during 
five  consecutive  years,  on  any  day  of  which  the  appeal  may  be  regularly 
and  properly  taken.  Here  there  was  no  time  between  the  21st  of  March, 
1S61,  and  the  4th  of  August,  1862,  during  which  time  the  annulling  order 
of  Judge  Ogier  was  in  force  and  effect. 

Now,  so  far  as  respects  the  objection  that  the  true  date  is  the  date  to 
which  the  nunc  pro  tunc  order  relates,  it  is  only  necessary  to  observe  that 
under  the  repeated  decisions  of  the  Supreme  Court  a  nunc  pro  tunc  entry  is 
never  allowed  to  work  injustice  or  fraud.  Otherwise  appellants  might  often 
be  deprived  of  their  remedy  of  appeal,  and  great  wrongs  be  perpetrated 
upon  parties  by  retroactive  orders  of  courts.  Rules  of  court  and  laws  are 
not  made  to  facilitate  but  to  defeat  and  prevent  fraud.  So  with  the  rules 
governing  in  this  case. 

Now,  having  gone  over  this  case  in  this  general  and  hurried  manner,  I 


14 


want  to  make  two  or  three  remarks  more,  and  then  I  will  close.  It  is  pro¬ 
posed  now  by  the  minority  of  the  Committee  on  the  Judiciary,  who  in  their 
report  concede  and  admit  that  McGarrahan  has  here  nothing  but  a  color 
of  title,  that  this  House  shall,  by  its  solemn  judgment,  interpolate,  interject, 
contrary  to  the  practice  of  the  whole  world  in  such  cases,  into  the  record  of 
another  co-ordinate  branch  of  the  Government,  a  lie.  Yes,  sir,  a  lie,  in  the 
form  of  a  declaration  that  a  patent  had  been  executed  to  McGarrahan,  when 
in  truth  and  in  fact  no  patent  wals  ever  executed  to  him. 

In  their  report  the  minority  do  not  pretend  that  any  patent,  in  the  legal 
sense  of  the  word,  was  ever  executed  to  McGarrahan;  and  no  such  patent 
ever  was  issued  or  executed  to  him.  And  the  paper  which  was  in  part  ex¬ 
ecuted,  and  which  under  some  circumstances  might  have  become  a  patent, 
never  was,  and  they  do  not  pretend  that  it  ever  was,  delivered  to  McGarra¬ 
han  or  to  anybody  else.  Everybody  knows  that  an  undelivered  patent  is  a 
worthless  piece  of  paper  and  amounts  to  nothing.  But  no  patent  was  exe¬ 
cuted,  even. 

Under  a  somewhat  loose  custom  in  the  Land  Office,  where  from  fifty  thou¬ 
sand  to  ninety  thousand  patents  are  made  up  each  year,  they  are  written  up 
by  the  clerks  as  if  finally  passed  upon  and  ordered,  in  the  routine  practice 
of  the  office,  and  then  they  await  final  approval  and  confirmation.  So  in 
this  case.  But  this  patent  never  was  finally  approved  nor  on  the  record 
ever  signed  by  the  recorder  of  the  Land  Office,  nor  even  delivered,  nor  its 
delivery  ever  ordered. 

Mr.  MAYHAM.  Will  the  gentleman  allow  me  to  ask  him  a  question  '? 
Mr.  KERR.  Yes,  sir. 

Mr.  MAYHAM.  If  the  Land  Office  has  issued  a  patent,  and  entered  it 
upon  record,  has  not  the  office  exhausted  its  entire  power  in  that  regard,  and 
does  the  patent,  under  those  circumstances,  require  a  formal  delivery  to  make 
it  effective  and  valid  ? 

Mr.  KERR.  The  gentleman  assumes  a  fact  which  does  not  exist,  that  a 
patent  ever  was  executed  in  that  way.  But  I  say  that  if  such  a  patent  had 
been  in  all  respects  of  form  fully  executed  and  regularly  recorded,  yet,  as 
against  manifest  and  outrageous  fraud,  as  in  this  case,  it  has  not  the  value  of 
a  feather;  it  is  not  worth  a  penny  ;  it  ought  not  to  stand  for  one  moment  in 
the  face  of  a  contravening  interest.  Besides,  I  say  it  is  not  final  or  conclu¬ 
sive  on  the  department.  Until  actual  delivery  it  is  under  the  full  and 
complete  and  legal  control  of  the  department. 

Mr.  MAYHAM.  One  other  question. 

Mr.  KERR.  Very  well. 

Mr.  MAYHAM.  If  the  Land  Office  had  issued  a  patent  which  might 
be  valid  and  which  was  valid  as  to  that  office,  has  that  office  the  right, 
without  the  intervention  or  the  order  of  a  court,  to  vacate  or  mutilate  that 
patent  ? 

Mr.  KERR.  Beyond  all  question,  it  has  a  right  to  defeat  a  fraud,  to 
stop  the  patent,  and  institute  further  examination  to  protect  the  Govern¬ 
ment.  Beyond  all  question,  the  Interior  Department,  to  the  exclusion  of 
the  world,  has  jurisdiction  under  your  laws  over  questions  of  this  kind  ; 
and  anybody  else,  whether  the  supreme  court  of  the  District  of  Columbia 
or  any  other  tribunal,  that  shall  attempt  to  overrule  the  jurisdiction  and 
discretion  of  that  department  of  the  Government,  will  attempt  a  lawless 
act.  The  department  of  the  Government  to  which  under  the  law  is  given 


15 


jurisdiction  over  all  these  questions  of  location,  of  pre-emption,  of  title  to 
the  public  land  of  the  country,  is  the  Interior  Department,  or  the  Commis¬ 
sioner  of  the  General  Land  Office,  and  on  appeal  from  the  Commissioner, 
the  Secretary  of  the  Interior.  After  a  patent  is  even  fully  executed  and 
signed  by  the  President,  it  may  be  suspended  as  to  delivery,  or  recalled 
for  correction,  and,  if  improvidently  written  out  and  signed,  it  may  be 
cancelled. 

Now,  if  McGarrahau  had  any  patent  executed  to  him,  why  is  it  that  up  to 
the  8th  day  of  July,  1870,  neither  he  nor  any  of  the  astute  gentlemen  who 
have  talked  in  behalf  of  McGarrahan,  none  of  his  counsel,  none  of  his  able 
lawyers,  ever  before  discovered  that  he  had  any  such  patent?  Why  is  it 
that  prior  to  July  8,  1870,  all  the  counsel  of  McGarrahan  and  of  the  Panoche 
Grande  Quicksilver  Mining  Company  of  New  York,  which  stands  at  his 
back,  always  conceded  that  there  had  been  no  patent  executed  ?  They  never 
claimed  any  such  thing. 

The  patent  in  question  is  claimed  to  have  been  engrossed  and  executed 
fully  on  March  14,  1863;  but  R.  H.  Gillett,  of  counsel  for  McGarrahan,  on 
June  23,  1863,  in  his  written  argument  to  Mr.  Secretary  Usher,  said  that 
“  befose  the  patent  was  actually  signed  the  Attorney  General  requested  that 
its  issuance  might  be  delayed,  which  was  ordered  by  the  Assistant  Secre¬ 
tary.”  And  that  order  was  as  follows  : 

Department  of  the  Interior, 
Washington,  March  13,  1863. 

Sir, — The  Attorney  General  has  notified  this  department  that  he  intends  to  have  the 
case  of  the  land  claim  of  Vicente  P.  Gomez,  known  as  the  Panoche  Grande,  brought 
before  the  Supreme  Court  of  the  United  States  for  review,  for  the  purpose  of  testing  the 
validity  of  the  grant. 

Under  these  circumstances  you  will  suspend  the  execution  and  delivery  of  a  patent,  under 
the  decision  of  this  department  of  the  4th  instant,  until  further  advised  in  the  case  by 
the  Secretary. 

1  am,  sir,  very  respectfully,  your  obedient  servant, 

W.  T.  OTTO,  Acting  Secretary. 

Commissioner  General  Land  Office. 

My  time  is  so  short  that  I  will  add  but  a  single  remark.  The  pretence 
that  there  ever  was  an  executed  patent  in  this  case  is  negatived  by  all  the 
evidence  before  the  committee,  except  the  testimony  of  one  man  ;  and  any 
fair  and  unprejudiced  mind,  reading  all  the  testimony,  including  that  of  this 
witness,  must  come  to  the  conclusion  that  the  testimony  of  that  one  man 
must  not  be  allowed  to  override  and  weigh  down  the  testimony  of  all  the 
others,  but,  on  the  contrary,  it  should  be  assumed  by  the  House  and  by  the 
country  that  the  witness  who  testifies  against  all  the  facts  on  the  record,  and 
against  all  the  other  witnesses,  testifies  to  what  is  false,  and  I  believe  he  does. 

I  protest  that  a  more  vicious  and  dangerous  act  could  not  be  committed 
by  Congress  than  to  attempt,  under  these  circumstances,  to  tamper  with  the 
solemn  and  repeated  adjudication  of  this  case  by  the  Supreme  Court.  The 
whole  matter  is  in  every  just  and  legal  sense  res  adjudicata.  Congress  is 
not  a  judicial  tribunal.  It  is  not  fit,  qualified,  or  constituted  to  perform  ju¬ 
dicial  duties.  It  should  promptly  and  indignantly  rebuke  every  attempt  to 
induce  it  to  interfere  with  the  regular  course  of  justice  in  this  way.  To  as¬ 
sume  jurisdiction  in  this  case  will  but  invite  similar  appeals  in  other  rotten 
and  fraudulent  claims  which  have  been  judicially  condemned.  In  the  inter¬ 
ests  and  for  the  safety  of  all  the  people,  let  us  stand  by  the  courts. 


Gibson  Brothers,  Printers,  Washington. 


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